A Banner Day in the Appellate Division for Lite DePalma Greenberg, LLC and Its Clients

Russo v. Friedrich, 2018 WL 4904555 (App. Div. Oct. 10, 2018); City of Newark Public Schools v. OPEIU Local 32, 2018 WL 4905414 (App. Div. Oct. 10, 2018).  It’s a good day when one wins an appeal.  It’s a better day when one’s firm wins two appeals on the same day.  Today is one of those days.

In Russo v. Friedrich, my colleague Francis A. Kenny and I represented the plaintiff in an appeal from an adverse jury verdict in a medical malpractice wrongful death case.  Other counsel had ably handled the trial, but there were serious errors that hamstrung plaintiff.  The Appellate Division reversed and remanded for a new trial.

First, the Law Division had improperly precluded plaintiff from presenting wrongful death proofs by granting a defense motion in limine that was filed just five days before trial.  That motion, the Appellate Division ruled in its per curiam opinion, “was a last-minute summary judgment motion in disguise, intended, as plaintiff says, ‘to cut the legs out from underneath plaintiff at the eleventh hour.'”  Citing L.C. v. M.A.J., 451 N.J. Super. 408 (App. Div. 2017), and Cho v. Trinitas Reg’l Med. Ctr., 443 N.J. Super. 461 (App. Div. 2015), which had condemned similarly belated motions in limine that effectively constituted summary judgment motions, the Appellate Division found that the Law Division’s ruling had “devastated plaintiff’s cause of action, essentially violating her right to due process….”

Second, over plaintiff’s repeated objections, the Law Division allowed a defense doctor who was qualified as an expert in pathology to testify not only in that area but also as to oncology, gastroenterology, and surgery.  That court did that even while observing that, as the Appellate Division said, the expert “exceeded the bounds of his credentials.”  The Appellate Division said that the Law Division had not offered a sufficient explanation for overruling plaintiff’s objections in this regard.  “At any new trial, [the expert’s] testimony must come within the bounds of his expertise, and he must be qualified in the areas in which he intends to testify.  And the judge’s ruling on any objection must be clear and explicit enough to allow for appellate review.”

In Newark Public Schools (“NPS”), my colleague Andrew L. Smith won a reversal of a Chancery Division decision in a labor matter in which the defendant Union filed a grievance on behalf of an employee whom NPS had terminated from her position as a Technical Assistant 3.  That was done pursuant to a an approved layoff plan that abolished all Technical Assistant 3 positions.  An arbitrator ruled that NPS improperly terminated the employee and required that NPS reinstate her and make her “whole for all lost income or benefits back to the date of her reinstatement less any monies earned through unemployment insurance or other means.”

NPS brought suit in the Chancery Division, Essex County, to vacate the arbitration award.  The Union counterclaimed to confirm the award.  The Chancery Division modified the award to require NPS to reinstate the employee to a different, provisional position, since the position to which the arbitrator ordered reinstatement no longer existed.

Though recognizing that its review of an arbitration award is deferential, the Appellate Division noted that review of a denial of a motion to vacate an award is reviewed de novo.  The panel agreed with NPS that the award was error, due to “undue means,” a recognized basis for vacating an arbitration award.  NPS had abolished all the Technical Assistant 3 positions in its approved layoff plan.  Thus, the employee had no right to be reinstated to that position.

The Chancery Division too erred in ordering the employee to be given a provisional position.  Given the employee’s “loss of permanent status and apparent lack of displacement rights,” she had no right to reinstatement either as a Technical Assistant 3 or in the alternative provisional position.

The Appellate Division summarized: “”As a provisional appointee, NPS had the discretion to terminate [the employee] at any time without being required to apply progressive discipline or demonstrate just cause for her removal.  Accordingly, the grievance should have been denied.  [She] was not entitled to reinstatement to either position or an award of back pay.  Consequently, the award was procured by undue means based on a mistake of law.  The modification of the award was also error.  The award is vacated and the order confirming the modified award is reversed.”